41 F. 523 -

41 F1d 523

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therefore comes clearly within<therul&in Rootv. Railway'Cd.', <atld the: bill must be dismissed for wllilt ,of jurisdiction." \ '. ,I, My conclusion upon the first point renders it unnecessary to consider' the question' as to the novelty of the device covered b): the patent.

THE KENILWOhTH. SPRECKLlilS et

aZ. 11.

THE KENILWORTH.

Sm..OWNERS' AND MERCHANTS' Tuo-BoAT CO. 11. SAME. SACRAMENTO TRANSP.

Co· .". SAME.

(D1.8trfct Court, N; D. Ca£Vomf.a. February 12, 1800.)

S.lLTAGB-AwA:lm....ErnNGUISH1llENT OF 1l'IRE. In ,the early morning. fire, from a burning warehouse was communicated to · wooden vessel and a steel ship fastened to the wharf, and, on attempting to run the latter into the stream, the tide took it along-side the former, and the two be-' by falling rigging. A steam-boat, built of and loaded with broom-corn, after spreading tarpaulins, and stationing a man with a hose on her deck, was attached to the steel ship, and drew both vesselil intO" the stream; Where they were separated by the tide, When the steel ship WB!i drawnlon the fiats. The steam-boat did not assist in putting, the fire out, which was done by tug-boats which arrived some hours afterwards froin a distant point. but, by' separating the vessels, prevented thtl,forepart of the ship taking fire. Tbetugs: M. and S\played on the after part of the ShIP, and, after the deck was cooled" down the hatches. The R. made fast to the forward part, where there was danger from' fioatipgwreckage, and, after extinguishing the fire on declt, attacked t,bat in the' between-decks; and her men incurred great danger in descending the liatch611 to extinguish fire in the cargo of wheat.' The M. had 100 feet of liose, the 'S:, 000 andt,he :EJ.'11,200, and played 5 streams" One hundred thousand dollars' property was saved. Held, that $14,500 should be awarded as salvage.-i4,500 to the steam-boat, 13,000 to the tugs M. and S.; and $7,000 to the tug It., " , ,', '

In Admiralty. On libel for salvage. WtilterO. Holme.s, for Sacramento Transp. Co. Edw. W. McGraw, for Ship-Owners' & Merchants'Tug-BoatCo. Andros Jilmnk, for Spreckles. . , OliarlaPage, for the Kenilworth and cargo. The salvors in cases saved property to the value of 8100,OOO,which would otherwise have been nearly, if not a total loss. Eal'lyin the morning Of August 26, 1889, a fire out in the Port Cos,tawarehouse, which S6011 spread to the adjoining lHiarf,' to which thewboden ship Hanowaurwas made fast. of herwa,s' the steel 'ship Kenilworth, also made fast to the wharf. Both of these caught fire from the burning wharf and warehouse. Tne'itlus'ter' of the Keriihvorth to move his' ve£sel· into the stream; 'the' iide,took her 81ong-side 11Ild against the Hanowaur. The falling rlgging' and spars entangled the two vessels,and it was found impossible

524
\

FEDERAL REPORTER,

vol. 41.

arate the I<enilworth from,the At this tirne the stearn-boat San Joaquin No.4 was with banked fires, at Grangera' wharf, ahoutQ,ne mile further up the stream. About 4 o'clock A. M. her captain Wfl.S informed of the fires at Port Costa. He jmmediately repaired to the spot, saw the situation of the vessels, and at once returned to his boat, got up steam, and came down in her to render what assistance he could. Lines were attached to the Kenilworth; and; after two or three attempts, rendered abortive by the parting of the lines, he succeeded in hauling' out, with his own hawser, hoth vE\ssels into the stream, where they were soon after separated by the force of the tide. He then towed the Kenilworth to the mud flats, where she was anchored,. ,I consider the San Joaquin performed a very meritorious salvage. She was built, like the ordinary tl)at, ply on our rivers, oryery light combustible materials, painted and saturated with oil·. Her consisted of broom-corn, loosely packed in bales, a,nd very inflammable. The captain did everything in his power to minimize the dangers he to by sprllading tarpaqlins on his deck-load, and by exposed stationing a nlan with a hoset6exting'uish any sparks or flakes of fire that might fall upon his vessel. ,Had fire been Gommunicatedto the hoot !in8everalplaces simultaneously, or which. from any cause, had obtained a headway beyoqdthe, power of his hose to control, her total d'estructionwas 'inevitable., t, The loss to her owners would in that case nave peen atleast $75 ,000'; 'perhaps more. , 'But it is to be Mted 'that San Joaquin No.4 did not extinguish, Qr in'extinguishing,',the fire. That service was performed by the tugs. But for their intervention. the Kenilwortlr must have been qonsumed, as"the Hanowaur'was, and the services of the, steamer would have been barren oftesult. On the other hand, it must be borne in mind t',hat the tugs d.'id not arrive until some hours after the steamer had hauled tnevessels into the stream. 'Had the latter remained fouled with each to the burning warehouse and wharf, the damage to the Kenilworth must have been ·greatly increased. The forward part of the ship, which was t1:len intact, might have been :reached by the conflagration; and: it was ,tbis part of the vessel which furnished 8 basis fOr theopell,Ations of the Relief, which performed the most. effectr ive part in extinguishing the fire. On the arrival of the tugs their first service would, in all probability, have been to haul the vessels away from the burning warehouse. and to separate them from one another. service, had ,already been performed by thesteaIlfj:'ir, ,V(tluable tnps tpgs were ena:bled togo ,to work effclltively, time withQut <;leJay.. AJlthe ,tugsdjsplayed. al!,\crity in reEfl.iring, with,o,ut"delll(y 'and at speed,toth,e ,disaS,ter, somEdW tp;25 rn iles distant' from this city.:'I:he the Relief some 15017 :KiPl{;.' ,'.l'heMonaroh at first. directed. her ;hose 9f i,n','fro,m her ,own dec,k,' .SO,m,e t"im,e eJ,apsed ttte' ,Qt', of the ship were sufliqiently herho13e,Q.f the King, whoseh().!le was

THE KENILWORTH.

across the Monarch, to be played down the lazarette hatch, and hatch No. 4. It is claimed on behalf these tugs that they extinguished the fire in both of those hatches. But of this there seems to be much doubt. The Relief made fast to the forward part of the ship, and, after extinguishing the fire on deck, attacked the fire in the between-decks, working from forward aft. I am of the opinion that the merit of extinguishing the fire substantially belongs to the Relief, although the Monarch and Sea King contributed to the result,-to what precise degree I am unable to determine. The Monarch was provided with 100 feet of hose; the Sea King, with 200; the Relief had 1.200 feet. The Monarch's hose was it inches in size. The Sea King had 100 feet of it hose, and 100 feet of 2-inch hose. The Relief could play five streams'of 2i inches, and' one stream of H inches. The disparity between her means and appliances for the extinguishment of fire was thus very great. The Relief, it is true; may not have put on aU her hose streams; but it is not denied that she played five streams until noon, and after that four streams. It,js able to suppose that she used the extraordinary means at her command with judgment, and as circumstances required.' .She perhaps: incurred some little risk of fouling her propeller in the wreckage floating,ahd partially submerged, near the quarter of the ship to'which she waS made fast. She hired three extra men from the, shore to reinforce her crew That her crew incurred a greater risk than they probably supposed 'in descending into the hatches to extinguish the fire in the wheat, of which the cargo was composed, is, I think; evident. Se,veral of them, the mate of the Kenilworth, were brought up fr()ffi the between-decks almost unconscious from suffocation. Capt. Freeman, late States inspector of hulls for this district, when asked if he/had had any expe.. riencein regard to burning wheat, replied that he had had npne. ¥few weekS afterwards, he and a very respectable merchant of thill.city were instantly.and fatally asppyxiated by the fumes of burning wheat in the bold of a vessel into wh:ich they had incautiously descended. Il;ad this deplorable incident occurred before the salvage service in.this case was rend13red, it would justly have been considered to have enhanced the merit of the salvors, by the exhibition of gallantry in affronting a known and formidabledanger;rn considering the amount of salvage to be awarded, and, its .distribution, I am reminded .of the oj:,servation of :the great chief justice in The Sybil, 4 Wheat. 98:
"It is almost impossible that different minds. contemplating the slime subject. should not form. different conclusions as to the amount of salvage to be decreed, and the mode of distribution."

I have examined the numerous cases, to which I have been referred, where salvage has been decreed under circumstances analogous to those ()f the suits under consideration. It is impossible to extract from them .any definite rule or guide. Tested by some of them, the salvage I shall award would be deemed excessive. According to others, it would be considered inadequate. The only analogous case which can be taken as authoritative is that of The Connemara, 108 U. S. 352, 2 Sup. Ct. Rep. 154. The district court had awarded as salvage $18,930 on an agreed

:ThiBs,w:ard theauprenre court refused' -to disturb,; JUanifestlyexcessive as to justify Hs .. iFebruary 6, 1875. .The:,court :powever,j that it might hav,ebeen better satisfied. if the award lnapplying this decision tothe cases at bar,the beconsiUered. A ,ship towed by a steam-tug down, the Wl;i$ a)lchored "and the: tug was lashed to her side. Itpenight a fire broke,ot;lt on boar<;l. the ship. It was discovered lIe gave the alarm to th.e tug, and the fire was, by the aid oJ a,$tell.IQ-pp,mp Rn'c;l hQ/J6,extinguillhad by the crew and passengers mil1utea.. > It will :benotr:d that in this case the tug was in iRnd employ! :of, the ship. Her salvage service was, in a to her own safety, unless, with In 20 JUlOutes, she had cast off the lash,the ship to hElt filw. She dpes not appear to have had any extraor<!jnwy .means or appliances, speciflllyadapted for the extinguishtnent amount: of :property endangered was much .larger ItM aqlQunt saved itl the case at bar., But the degree of peril was 'ill conclusively: shown by the fact· that the fite was' extinuse and hose, in. 20 minutes. In the case;QfTbeS,ulitJt4, 5 Fed. Rep. 104, Mr" Chief J ustiCEl observes: : ."[nmakisg;tbisawardto ,the ,protector, we have had r.egard to the fact her salvl!'ge, service is euhanced by beb1g; and furnished, .forperfoqning this kind of work ·. Being aIat for the accomplishment of hert>urpOSe;.3 fire haPPlmitlt, to aos vessel in the harbur is bereftot mnch of its· ttmoi,; and. tile damage',actilaHy eusuingtherefrolD is in most cases. an4 prqbably was.io this case. greatly lessened' in 'extent." ';I:1'6e ,in the case of The aler, 81 Fed. Rep. lirEl'to the effect': .: '. . ... " ., . ,.' . in this. of extinguishing' fire, are tast as'importl\tl.t 'fOT thesl1ipping interests as: thefire·engi nl'S are to the city. IDhey;contrtbnte milch inllavillg losses ,to· the people; ahd to insurance com· the6re-engi nes: and it is a pRrtoflthepolicy of the la w to encour.'. '; , ,...', . . of 8141500, to be distributed;.-$4.500 tol.the .SaaJ'.oaquin No. 41 '8,000 to: the Monarohand'Sea King; 87,000 to the Relief. . .' .
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mE RALEIGH.

, TaEN:IAGARA. HARDY V.TuE RALEIGH and THE NIAGARA.
(Df.sPrlct

Oourt, S. D. Ne:w York. February

1800.)

t.'COtt;t8JON-".11'uG AND 'Tow AT ANCHOR IN Foo-WANT OY1'ROPERBIGIULll. '11le; N" witl\ a fleet of Qanal-boats in tow, extending from 4.QO to 800 feet astern, came !!onc,hor in a dense togin the Hudson, river. The N. was assisted by a helper, the :m., which was under the N.'s orders, and had proper means for signaling ina fog. , haC! ,npt,. Held, that,it ,was the duty oUhe,N; to have ordel'ed the E. along-side the tow, to give fog signals, and because of her failure to do so she was liable for the sinking of a boat in her tow by collisionJ.Wlth a moving vesileL ' ,
1::&b....,Foo-,+FAULttN,n'lGAoriON-EXCESittVll SPEED.,:',! ',','

. J. On tne'morningof:Mat,8, i889, 'the canal-boat, Heaton, being .the port; boat on the hawser 'of afll3etof boats attached by a hawser to the the fliiei' was 'lying at anchor in about the middle ,of the Hqdson, rivet, "between Englewood dock arid Inwood, wall run into by tne'steam'fteight'boatlWeigh, ina very dense fog. 'The Heaton' and hEir: CAtgo were Bunk; and the libelant, being carried boat,wlirriear1y drowned., Though he sustained and moreorless per:bodily fnju'ries. ' '_" " " ',' , ,,- .; ·, , Thecbntradictions and difficulties presented by the testimony; furnany particulars; are fora cause of MU9h consideration ll?WeVer"satis,fies faults,-;"dne on th,e wluc\l must result III a dIVISIOU of thl3, l1amages; 'so th:ri.tit is illinecessary W'dWell 'upOn 'the other p-erplexitiesonhe' The Niagara came to anchor between 1 and 2 o'clock A. M. 'jldcOrint of the density of the fog; and, though afterwards it lightened up for a while, the fog at the time of the collision was so dense that the Heaton could not be seen until the Raleigh was within 50 feet of her,-too late to avoid collision. Assuming that the Niagara was ringing her fog bell every two minutes, as many of her witnesses assert, although as many on the part of the Raleigh testify that no bell was heard until just after